Thursday, September 21, 2006

Immigration Court Must Mail Notice To Listed Attorney; Withholding of Removal Legal Mistake

The not-precedential case of Perez-Alevante v. Gonzales, No. 05-4230 (3d Cir. Sept. 19, 2006) (not precedential) overturned Judge Dogin and the BIA concerning whether the court must mail a copy of the hearing date to the immigrant's attorney. The Third Circuit ruled that yes, the immigration court must send a copy to any listed attorney. Not doing so violated the immigrant's Fifth Amendment right to due process.

In the case, in December 1997 ICE informed the immigrant it would start an immigration court case against him in the future. He let the court know who his attorney was for the case. Around 6 years later, in April 2004, ICE finally filed the case with the court. The Third Circuit noted a non-immigration case Jones v. Flowers by the United States Supreme Court that complained where the government's mailing was returned as undeliverable, it must make other efforts before selling off the person's house to pay tax debts. This ruling makes sense because in most cases, the attorney will be in court and handed the notice. Extra safeguards are needed to protect the immigrant and his attorney if the only way they are being informed is by mail.

On a side-note, it is disturbing to see that ICE made the losing argument that the Third Circuit had no power to review the BIA's mistake. Under the REAL ID Act, the Third Circuit can review constitutional claims and questions of law raised by criminal immigrants. ICE tried to argue that the Third Circuit could only review "legitimate" claims, whatever that means.

In Kwee v. Gonzales, No. 05-4542 (3d Cir. Sept. 20, 2006) (not precedential), the Third Circuit overturned the BIA and Immigration Judge R.K. Malloy because they made a big mistake in deciding a request for withholding of removal. If someone shows past persecution, there is a legal presumption of future persecution that the government has the burden of disproving. This is clear from the regulation 8 CFR 208.16(b)(1)(i) & (ii). Judge Malloy and the BIA made a mistake by not recognizing the applicant's past persecution and not putting the burden on the government to disprove future persecution would be likely to happen.


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